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Articles from August 2011

Two ballot questions to change the law regarding the sale of alcohol in supermarkets were recently filed with the State Attorney General. The Boston Herald reports that the MA Food Association is attempting to increase the total amount of permits that can be held by any one chain.

Currently, Massachusetts law restricts an individual or corporate entity to holding no more than three alcohol permits. This means that a supermarket chain can only sell alcohol from a maximum of three of its locations, regardless of how many individual stores are in the state. This generally explains why certain supermarkets sell beer and wine from only a few locations and not others. Supermarkets must choose which three stores will sell alcohol, which can create problems in store uniformity and customer expectations.

Supermarkets and many customers have been pushing for this law to be changed for years. Senate Bill 1851, if approved by the legislature, would increase the amount of licenses available to a supermarket chain from three to twenty. The bill would also restrict the number of licenses that could be held by a supermarket chain to one per town and two per city. The local licensing authorities would still have to approve a permit application for each location and all alcohol permit quotas would still apply.

It remains to be seen whether Attorney General Martha Coakley will certify either ballot question or whether the legislature will vote favorably on Senate Bill 1851. Needless to say, change could be coming to a supermarket near you but don’t plan to drink-up just yet.

The Boston Globe and Boston Herald have reported on a recent change or clarification in policy regarding “farmer-brewery” licenses by the Massachusetts Alcoholic Beverages Control Commission (ABCC). Farmer-brewery licenses are intended to encourage the development of “domestic farms”, and appear in the regulatory statute alongside similar provisions for licensing of farmer-wineries, pub-breweries, and farmer-distilleries.

In late July, the ABCC denied an application for a famer-brewery license to be located in Everett, Massachusetts. The ABCC followed up on August 1 with an Advisory, announcing that all farmer-breweries will henceforth need to demonstrate that at least half of the grains or hops needed to produce their malt beverages are grown by the licensee. In an interesting exception, the ABCC announced that the “grown by the license” requirement could be satisfied if the licensee or applicant merely “contracted exclusively” for the rights to the yield of cereal grains or hops produced from acreage of domestic farmland.

In other words, the ABCC ruled that a farmer-brewer needs to actually grow at least half of the cereal grains or hops needed to produce its malt beverage “unless someone else grows the grains and hops for them, both exclusively and domestically”.

Some remaining confusion stems from whether “domestic” as used in the statute means “from within Massachusetts” versus “from within the United States”. Most observers think the ABCC interprets “domestic” to mean “from within Massachusetts”, such that “farmer-brewers” would need to obtain their grains and hops largely from within Massachusetts.

That interpretation, however, could well be unconstitutional, under a line of recent court cases from around the country interpreting farmer-winery licenses. Those cases basically hold that under the Commerce Clause of the US Constitution, a state cannot favor in-state interests over out-of-state entities in its liquor licensing scheme.

Stay tuned, the Globe reports that brewers are meeting next week with state treasurer’s office (which oversees the ABCC).

Wayne, Richard & Hurwitz LLP filed a class action Complaint against Zipcar, Inc. (â€œZipcarâ€) on Wednesday, July 27.Â The Complaint was filed in the United States District Court of Massachusetts.

Zipcar is a well-known â€œcar sharingâ€ company. Zipcar members pay an annual fee to obtain the ability to rent Zipcars by the hour or for the day. Zipcar vehicles are kept in parking lots and parking garages in major cities, such as Boston, New York City, and Chicago. Once a member reserves a vehicle online or via phone, they use a Zipcar card to access their chosen car. The member can utilize the vehicle for the selected length of time, after which the vehicle must be returned to the garage or lot from which it was retrieved.

The named plaintiff in this case is a Zipcar member challenging Zipcarâ€™s late fee system. If a vehicle is returned late, Zipcar charges substantial late fees, even if the vehicle is returned merely a minute late. Plaintiff objects to this system, as the penalties imparted upon members exceed any compensation for the harm to Zipcar. Plaintiff seeks restitution for late fees unfairly imparted, as well as a finding that Zipcarâ€™s late fee policy is void and unenforceable.